Excerpt: - - the adopted boy died and subbamma then adopted with the like consent the first respondent, the son of the second respondent. for even the son of a daughter saves him (who has no sons) in the next world, like the son's son. four division benches of this court have considered the judgments of the privy council in cases relating to the widow's right to adopt and there has been a marked divergence of opinion as to their effect in a case like the present one. the assent of kinsmen seems to be required by reason of the presumed incapacity of women for independence, rather than the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by the adoption. -(1) the assent of 'kinsmen' is required by reason of the presumed.....alfred henry lionel leach, c.j.1. the question which the court is called upon to decide in this appeal is whether an adoption by a hindu widow is valid when the family is divided and she has obtained the consent of the nearest sagotra sapindas of her husband, but has not consulted a daughter's son, he being of age. in other words does the hindu law demand that the daughter's son shall be consulted, if he is of age, before the widow can adopt, notwithstanding that the proposed adoption has received the approval of her husband's nearest agnates?2. in this case one kornepati lakshminarayana died divided from his brothers. he was survived by his wife subbamma and his two daughters, the appellant and one rathamma, who is now dead. the appellant has four sons who have not been made parties to.....

Judgment:

Alfred Henry Lionel Leach, C.J.

1. The question which the Court is called upon to decide in this appeal is whether an adoption by a Hindu widow is valid when the family is divided and she has obtained the consent of the nearest sagotra sapindas of her husband, but has not consulted a daughter's son, he being of age. In other words does the Hindu law demand that the daughter's son shall be consulted, if he is of age, before the widow can adopt, notwithstanding that the proposed adoption has received the approval of her husband's nearest agnates?

2. In this case one Kornepati Lakshminarayana died divided from his brothers. He was survived by his wife Subbamma and his two daughters, the appellant and one Rathamma, who is now dead. The appellant has four sons who have not been made parties to this litigation. Rathamma had two sons the fifth and sixth respondents. In the year 1916, about 40 years after her husband's death, Subbamma adopted a boy named Narasimha Rao, the son of the third respondent. Before the adoption took place Subbamma obtained the consent in writing of her husband's nearest agnates, the second, third and fourth respondents, who are the sons of her husband's brothers. The adopted boy died and Subbamma then adopted with the like consent the first respondent, the son of the second respondent. It is common ground that the adoption ceremony was duly performed and that the appellant's sons, all of whom were majors, were present. Subbamma died on the 23rd April, 1930, and after her death the appellant instituted in the Court of the District Munsif of Guntur the suit out of which this appeal arises for a declaration that the adoption was invalid and for possession of her father's estate. Various pleas were raised, but for the purposes of the appeal it may be taken that her only ground for challenging the adoption was, that one of her sister's sons, the sixth respondent, who was a major at the time of the adoption, was not consulted and that he had not intimated his consent to the adoption taking place. Why the appellant did not join her sons as parties to the suit is explained by the fact that they were present at the adoption ceremony and she was unable to contend that they were not consenting parties. The position then is this. The nearest sagotra sapindas gave their express consent to the adoption, the appellant's own sons impliedly gave their consent, but the major son of the appellant's sister was not consulted and did not signify his acquiescence. The Court has been given to understand that the either son of Rathamma was a minor at the time. The District Munsif held that the adoption was valid and on appeal the Subordinate Judge of Guntur concurred in his decision. The appellant then filed this second appeal which has been placed before a Full Bench for decision as there is a conflict of authority in this Court on the question whether it is necessary to consult a daughter's son when the widow of a member of a divided Hindu family adopts a son to her husband without authority to adopt having been given by her husband.

3. The position of a daughter's son under Hindu law is a special one. While he is not a sagotra sapinda, but a bandhu, he is given the right of succession to his maternal grandfather's estate after the death of his maternal grandmother and his mother when the maternal grandfather has left no son, grandson or great grandson through the male line. According to the Mitakshara law of succession the agnatic kindred are as a general rule preferred to all cognates, irrespective of proximity of relationship. In the absence of a direct descendant in the male line down to three degrees, the widow, however, inherits the estate, and after her, the daughter and the daughter's son. These three come in before all other agnates except the three descendants in the direct male line. The precedence of the widow is due to the theory that she is the surviving half of her deceased husband, and the daughter comes in next because she equally with the son proceeds from the limbs of the father. The special position of the daughter's son is based on ancient texts.

4. Vishnu says:

In regard to the obsequies of ancestors, daughter's sons are considered son's sons,

5. and Manu:

Between a son's son and the son of a daughter there exists in this world no difference; for even the son of a daughter saves him (who has no sons) in the next world, like the son's son.

6. It is clear that the priority given to the widow, the daughter and the daughter's son over agnates not in the direct male line of descent can only be regarded as an exception to the general rule.

7. There is no textual authority bearing directly on the question raised in this appeal, at least none has been quoted to us, and in the course of the argument the Court has been given to understand that none exists. The question admittedly falls to be decided on the principles to be gathered from the decisions of the Privy Council relating to the widow's right to adopt under the Mitakshara law as applied in the Madras Presidency, but the question whether the daughter's son has the right to be consulted before the widow adopts a son to her deceased husband without authority from the husband has not been raised directly before the Judicial Committee. Four Division Benches of this Court have considered the judgments of the Privy Council in cases relating to the widow's right to adopt and there has been a marked divergence of opinion as to their effect in a case like the present one. In order that there may be some finality so far as this Court is concerned on the question of the meaning to be attached to the decisions of the Judicial Committee it is necessary that they should again be examined and that this Full Bench should decide their bearing in this connection.

8. In Collector of Madura v. Moottoo Ramalinga Sethupathy (1868) 12 M.I.A. 397, which is known as the Ramnad case, the Privy Council definitely laid down that according to the Mitakshara law as administered in the Madras Presidency a Hindu widow, not having her husband's authority to adopt, could lawfully adopt a son to him, if the adoption was authorised by the consent of his 'kinsmen'. With regard to the question, who are the kinsmen whose assent will supply the want of positive authority from the deceased husband, their Lordships in that case observed:

Where the husband's family is in the normal condition of a Hindu family, i.e., undivided, that question is of comparatively easy solution. In such a case the widow, under the law of all the schools which admit this disputed power of adoption, takes no interest in her husband's share of the joint estate, except a right to maintenance. And though the father of the husband, if alive, might, as the head of the family and the natural guardian of the widow, be competent by his sole assent to authorise an adoption by her, yet, if there be no father, the consent of all the brothers, who, in default of adoption, would take the husband's share, would probably be required, since it would be unjust to allow the widow to defeat their interest by introducing a new coparcener against their will. Where, however, as in the present case, the widow has taken by inheritance the separate estate of her husband, there is greater difficulty in laying down a rule. The power to adopt when not actually given by the husband can only be exercised when a foundation for it is laid in the otherwise neglected observance of religious duty, as understood by Hindus. Their Lordships do not think there is any ground for saying, that the consent of every kinsman, however remote, is essential. The assent of kinsmen seems to be required by reason of the presumed incapacity of women for independence, rather than the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by the adoption. In such a case, therefore, their Lordships think, that the consent of the father-in-law, to whom the law points as the natural guardian and 'venerable protector' of the widow, would be sufficient. It is not easy to lay down an inflexible rule for the case in which no father-in-law is in existence. Every such case must depend upon the circumstances of the family. All that can be said is, that there should be such evidence of the assent of kinsmen as suffices to show, that the act is done by the widow in the proper and bona fide performance of a religious duty, and neither capriciously nor from a corrupt motive.

9. So far as the divided family is concerned it will be observed that the Board here held that: - (1) the assent of 'kinsmen' is required by reason of the presumed incapacity of women for independence, rather than the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by the adoption; (2) the consent of tie father-in-law, the 'venerable protector' of the widow would be sufficient; (3) when the father-in-law is dead it is not easy to lay down an inflexible rule; every such case must depend upon the circumstances of the family, and there should be such evidence of the assent of 'kinsmen' as suffices to show that the act is done by the widow in the proper and bona fide performance of a religious duty, and neither capriciously nor from a corrupt motive. In the Ramnad case the nearest agnates were the mother-in-law of the widow and the natural brother of the adopted boy, and it was held that their consent was sufficient. No cognate was consulted. In all the decisions of the Privy Council bearing on this question, except one, there were agnates living. In the one exception there was no evidence as to what agnates were in existence, and so far as the main claimant was concerned the case turned, not on the consent of cognates, but whether there was an implied authority to adopt independently of any consent. I shall make further mention of this case later.

10. In Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo , the Judicial Committee made the following observations, which have an important bearing on the matter under discussion, notwithstanding that there the family was undivided:

The Hindu wife upon her marriage passes into and becomes a member of that family. It is upon that family that, as a widow, she has her claim for maintenance. It is in that family that, in the strict contemplation of law, she ought to reside. It is in the members of that family that she must presumably find such councillors and protectors as the law makes requisite for her.

11. The daughter's son is not of the family. He is a member of his father's family and therefore clearly does not come within this statement. Their Lordships in this case also observed:

It may be the duty of a Court of Justice, administering the Hindu Law, to consider the religious duty of adopting a son as the essential foundation of the law of adoption, and the effect of an adoption upon the devolution of property as a mere legal consequence. But it is impossible not to see that there are grave social objections to making the succession of property, and, it may be, in the case of collateral succession, as in the present instance, the rights of parties in actual possession, dependent on the caprice of a woman, subject to all the pernicious influences which-interested advisers are too apt in India to exert over woman possessed of, or capable of exercising dominion over, property.

12. Here emphasis is placed on the necessity for advice in order to prevent the widow acting capriciously or from corrupt motives.

13. In Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi (1876) L.R. 4 I.A. 1 : I.L.R. 1 Mad. 174 , the Privy Council considered the passage in the Ramnad cases immediately following the statement that it was not easy to lay down an inflexible rule for the case in which no father-in-law was in existence and said:

Their Lordships think it would be very dangerous to introduce into the consideration of these cases of adoption nice questions as to the particular motives operating on the mind of the widow, and that all which this Committee in the former case intended to lay down was, that there should be such proof of assent on the part of the sapindas as should be sufficient to support the inference that the adoption was made by the widow, not from capricious or corrupt motives, or in order to defeat the interest of this or that sapinda, but upon a fair consideration, by what may be called a family council of the expediency of substituting an heir by adoption to the deceased husband.

14. There is no reason to suppose that the word 'family' was here used in a sense different from the strict sense in which it was used in the passage which I have quoted from the judgment in Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo .

15. A Hindu widow having no authority to adopt cannot ignore the nearest sapindas. If she does and acts only with the consent of remote sapindas the adoption is invalid. This was the decision of the Privy Council in Veera Basavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 40 : L.R. 45 IndAp 265 : I.L.R. 41 Mad. 998 . The widow there adopted without the consent of the nearest agnates and the adoption was held to be invalid. The judgment of the Board was delivered by Mr. Ameer Ali, who said that the Ramnad case (1868) 12 M.I.A. 397 established the proposition that under the Dravidian branch of the Mitakshara law, in the absence of authority from her deceased husband a widow may adopt with the assent of her 'males agnates' (page 1004 of the report). At page 1009 Mr. Ameer Ali said:

The decision in the Ramnad case Collector of Madura v. Moottoo Ramalinga Sethupathy (1868) 12 M.I.A. 397 was followed and explained in Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi which established the following, proposition : That the requisite authority in the case of an undivided family is to be sought by the widow within that family; that it is in the members of that family that she must presumably find such counsellors and protectors as the law makes requisite for her; and that she cannot at her will travel out of that undivided family and obtain the authorization required from separated and remote kinsmen of her husband. This being the position of a widow in an undivided family, what are the conditions imposed on her if her husband happens to die in a state of separation from his kindred? Division does not affect her personal dependence or give her an independent status to alter by her own authority the succession to the estate which she takes as the widow of her husband. She is still dependent for counsel and protection upon the nearest sapindas of her husband, who are the most closely united to him by ties of blood, or, to use the language of Hindu lawyers, by 'community of corporal particle'. The father of the deceased, if still alive, continues to be her 'natural guardian and venerable protector.' He has furthermore a direct interest in the protection of the estate, for in case of her death without leaving her surviving a daughter or the mother of her deceased husband, he has right to the reversion. His authorization is, therefore, essentially requisite to the validity of an adoption by her to her husband. If there is no father the divided brothers take his place by virtue of the tie of blood as her husband's nearest sapindas; they become her natural guardians and protectors of her interests. They also have an interest in the protection of the inheritance. In the absence, then, of the father, the assent of the divided brothers is equally requisite for the validity of the widow's adoption. If a majority assent and one refuses, his objection may be discounted. But the absence of their consent, or in case there is only one, of his consent, cannot be made good by the authorization of distant relatives remotely connected whose interest in the well-being of the widow or the spiritual welfare of the deceased, or in the protection of the. estate, is of minute character, and whose assent is more likely to be influenced by improper motives.

16. We have here a reiteration of the principle stated in the Ramnad case (1868) 12 M.I.A. 397 that the consent of the father-in-law, if still alive, is essential to a lawful adoption and the equally positive statement that in the absence of the father-in-law the consent of the divided brothers of the deceased husband is requisite. The daughter's son in the matter of succession excludes the deceased's father and his brothers, but this judgment clearly lays down that they come before all others when it is a question of advising the widow on a proposed adoption. In my opinion the judgment does not confine the priority to the father and the brothers. The words:

She is still dependent for her counsel and protection upon the nearest sapindas of her husband, who are the most closely united to him by ties of blood, or, to use the language of Hindu lawyers, by 'community of corporal particles'

indicate that the priority extends to all the agnates, the nearer, of course, excluding the more remote. But if there were any doubt it would be eliminated by the following statement at page 1011 of the report:

The reasons which make the assent of divided brothers a requisite condition apply mutatis mutandis to the case of the nearest sapindas other than brothers.

17. The word 'sapindas' can only be read here as denoting agnates.

18. It is true that in Veera Basavaraju v. Balasurya Prasada Rao , show clearly that the rights to property cannot be left out of consideration in determining who should be consulted before a widow of a separated brother makes an adoption. But this statement was made in connection with the rule which was being laid down that in the absence of the father-in-law the brothers should be consulted. In the absence of a daughter's son they would be the nearest reversioners and their contingent right to the property was given as an additional reason why the brothers should be consulted. I am unable to read into the judgment in Veera Basavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 40 : L.R. 45 IndAp 265 : I.L.R. 41 Mad. 998 an indication that right to property is to be the governing factor; in fact when the authorities are considered as a whole it seems to me that the indication is all the other way.

The consent required is that of a substantial majority of those agnates nearest in relationship who are capable of forming an intelligent and honest judgment on the matter. It must, however, be added that, save in exceptional cases such as those mentioned above (where the near agnate is a minor or lunatic or actuated by corrupt or malicious motives) the consent of the nearest sapindas must be asked, and if it is not asked it is no excuse to say that they would certainly have refused.

20. There could be nothing plainer than this statement. The nearest agnates who are capable of forming an intelligent and honest judgment have to be consulted in the matter of a proposed adoption by a widow. It will be observed that the word 'sapindas' is used in this passage and that the context demands that it be read as meaning 'agnates'.

The sapindas are to be regarded as a family council Vellanki v. Venkata Rama , the natural guardians of the widow, and the protectors of her interests. In giving or withholding their consent, it is their duty, in this capacity, to form an honest and intelligent judgment on the advisability or otherwise of the proposed adoption in, and with reference to the widow's branch of the family...Their Lordships have no hesitation in holding that where a sapinda whose consent to an adoption is sought, is actuated by motives such as these (personal loss to himself and enmity), his dissent may be disregarded and they think it follows that if only the other sapinda in the same degree accords a bona fide consent, the adoption will be valid.

22. The judgment in Krishnayya v. Lakshmipathi (1920) 39 M.L.J. 70 : L.R. 47 IndAp 9 : I.L.R. 43 Mad. 650 , was referred to in this judgment and it is to be presumed that the word 'sapinda' was used in the same sense.

23. On behalf of the appellant great stress has been laid on a short passage in the judgment of the Privy Council in Balasubramanya Pandya Thalaivar v. Subbayya Thevar : AIR1939Mad168 . This is the one case in which there were no agnates living and the decision turned on the question whether there was implied authority to adopt, independently of consent by sapindas. The passage on which reliance is placed by the appellant is this:

Their Lordships would not the prepared to hold on the authorities that the only kinsmen whose assent need be sought are the agnates.

24. It is sail that this means that in using the words 'kinsmen', 'kindred', or 'family council' the Privy Council must have had in mind both agnates and cognates. In view of the very definite statements in Veera Basavaraju v. Balasurya Prasad Rao (1918) 36 M.L.J. 40 : L.R. 45 IndAp 265 : I.L.R. 41 Mad. 998 and Krishnayya v. Lakshmipathi (1920) 39 M.L.J. 70 : L.R. 47 IndAp 9 : I.L.R. 43 Mad. 650 , this argument cannot be accepted in respect of cases where there are agnates living. I consider that the statement in Balasubramanya Pandya Thalaivar v. Subbayya Thevar : AIR1939Mad168 , can only be taken as an indication that in their Lordships' opinion consultation is still necessary when the only surviving relatives are cognates. No assent of 'kinsman' was alleged in that case, but it was contended that as there were no agnates in existence at the time of the adoption whose assent could be sought the widow had an inherent right to adopt of her own volition. An issue was raised as to this in the trial Court, but the contention was subsequently abandoned. It was not raised in the argument on appeal and was not referred to in the printed case, but the contention was sought to be revived before the Board. The argument was rejected and it was in this connection that their Lordships made the observation on which the appellant places so much stress.

25. In my opinion the judgments of the Privy Council are to be read as deciding that the widow of a divided brother, not having received from her husband authority to adopt a son to him, can only do so when she has received the consent of her father-in-law, if alive. If the father-in-law is dead she must receive the assent of her husband's brothers. If there are no brothers living, the nearest agnates are her proper advisers. If consent is improperly withheld she may nevertheless lawfully adopt with the consent of the next nearest agnates. If there are no agnates she must look for advice to the cognates, it having been definitely laid down that she is not competent in law to decide on an adoption for herself. The same rule of priority will naturally apply in the case of cognates. In view of the emphatic statement with regard to the position of the father-in-law in the Ramnad ease (1868) 12 M.I.A. 397, the equally emphatic statements in Veera Basavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 40 : L.R. 45 IndAp 265 : I.L.R. 41 Mad. 998 , with regard to priority (first the father-in-law, then the brothers, and after them the nearest agnates) and the express mention of the nearest agnates in Krishnayya v. Lakshmipathi (1920) 39 M.L.J. 70 : L.R. 47 IndAp 99 : I.L.R. 43 Mad. 650 , I fail to see how any other construction can be reasonably placed on the judgments of the Board dealing with this question. And to read them in this sense accords with the Hindu idea of the family. The agnates are the only true members of the family according to the Hindu idea.

26. In adopting a son to her husband the widow is only acting in accordance with the tenets of her religion. The happiness of her husband's soul may depend on there being a son to carry out the religious duties imposed upon a son by the Hindu religion. In Amarendra Man Singh v. Sanatan Singh (1933) 65 M.L.J. 203 : L.R. 60 IndAp 242 : I.L.R. 12 Pat. 642 , the Judicial Committee referred to the well-established doctrine as to the religious efficacy of sonship and their Lordships felt that great caution should be observed in shutting the door upon any authorised adoption by the widow of a sonless man. The judgment in that case recognises the importance of an adoption from a spiritual point of view and indicates that the matter of succession to property is a secondary consideration. The only ground on which a daughter's son can really claim to be consulted is his interest in the property. He is not a member of the family and is only regarded as a sapinda for purposes of succession. He may if he cares to do so perform the religious duties which would fall upon the grandfather's descendants in the male line if there were such descendants, but admittedly there is no obligation upon him to perform them. If he neglects to carry out the ceremonies he commits no sin, but neglect in this respect by a son involves the commission of sin. The insistance on the widow seeking advice is based on her own incapacity to form a proper opinion for herself, and obviously the person least likely to give proper advice in such a matter is the son of her daughter who is a member of another family and will lose the whole estate if the adoption takes place. Moreover, he is likely to be a very young man, although he cannot be ruled out on this ground. While interest in the estate has been regarded as a factor in the choosing of advisers the judgments of the Privy Council show that it cannot b e regarded as the governing factor. Sound advice to the widow is the most important consideration in the performance of an act which may be regarded as a religious duty, certainly an act which according to the Hindu religion will confer spiritual benefit on her deceased husband. The best advice is obviously to be expected from the dead husband's agnates, and it seems to me that the Privy Council has clearly indicated that if there are agnates, they and they alone, are the proper advisers of the widow. In the present case the widow received the consent of her husband's nearest agnates and I hold that the fact that the major son of Rathamma did not consent does not invalidate the adoption.

27. The conclusion that the daughter's son is not entitled to be consulted is the conclusion which Oldfield and Phillips, JJ., arrived at in Viswasundara Rao v. Somasundara Rao I.L.R.(1920) 43 Mad. 876, by Jackson, J., in Anne Brahmayya v. Chdasami Rattayya (1924) 20 L.W. 503 and by Madhavan Nair and Jackson, JJ., in Murahari Brahma Sastri v. Sumitramma (1933) 66 M.L.J. 577 : I.L.R. 57 Mad. 411 and I may add that the same opinion is expressed in Mayne, 10th Edition, pages 223-5. In Anne Brahmayya v. Chelasami Rattayya (1924) 20 L.W. 503, Ramesam, J., who formed the Division Bench with Jackson, J., held that the widow was bound to consult the daughter's son and Spencer and Venkatasubba Rao, JJ., agreed with him in Kesar Singh v. Secretary of State for India : AIR1926Mad881 . Ramesam, J., considered that there was nothing in the decisions of the Privy Council to show that cognates were not included in the rule with regard to the consultation of kinsmen and said that the word 'sapindas' whatever its meaning in the Smritis may be, can include agnates as well as cognates, referring in this connection to the judgment of the Judicial Committee in Ramachandra Martanda Waiker v. Vinayak Venkatesh Kothekar (1914) 27 M.L.J. 333 : L.R. 41 IndAp 290 : I.L.R. 42 Cal. 384 . The question does not depend on whether the word 'sapindas' may or may not be taken to include agnates as well as cognates speaking generally, but on; the principles to be gathered from the judgments of the Privy Council and as I have indicated I can see no reason whatever for supposing that the Judicial Committee ever intended to lay down that cognates shall be consulted when there are agnates alive. In Kesar Singh v. Secretary of State for India : AIR1926Mad881 , Spencer, J., observed that agnates should as a rule be consulted first, if there are agnates, because the principal agnates are the nearest kinsmen but he saw no authority for limiting the class of gnatis and sapindas to agnates except the judgment of Oldfield and Phillips, JJ., in Viswasundara Rao v. Somasundara Rao I.L.R.(1920) 43 Mad. 876. Venkatasubba Rao, J., expressed the opinion that if the judgments of the Privy Council did not embrace cognates as well as agnates a widow could not adopt if there were no surviving agnates, but he did not consider whether the judgments might be taken to apply to agnates in the first place and to indicate that cognates should be consulted in the absence of agnates. I have sufficiently indicated my opinion of the effect of the rulings of the Privy Council and it follows that I consider the judgments of Ramesam, Spencer and Venkatasubba Rao, JJ., are erroneous and ought not to be followed.

28. It is a great pity that this question was not referred to a Full Bench for decision when the question was raised for the second time in Anne Brahmayya v. Chelasami Rattayya (1924) 20 L.W. 503. While a Judge of the High Court sitting alone is not bound on a question of law by the decision of another Judge sitting alone this principle goes no further. The Division Bench is the final Court of Appeal in an Indian High Court, unless the case is referred to a Full Bench, and one Division Bench should regard itself bound by the decision of another Division Bench on a question of law. In England where there is the Court of Appeal, Divisional Courts follow the decisions of other Divisional Courts on the grounds of judicial comity. See The Vera Cruz (No. 2) (1884) 9 P.D. 96, Harrison v. Ridgway (1925) 133 L.T. 238, Ratkinsky v. Jacobs (1929) 1 K.B. 24 and Phillips v. Copping (1935) 1 K.B 15. If a Division Bench does not accept as correct the decision on a question of law of another Division Bench the only right and proper course to adopt is to refer the matter to a Full Bench, for which the Rules of this Court provide. If this course is not adopted the Courts subordinate to the Court are left without guidance. Apart from the impropriety of an appellate Bench refusing to regard itself bound by a previous decision on a question of law of an appellate Bench of equal strength and the difficulty placed in the way of Subordinate Courts administering justice, there are the additional factors of the loss of money and the waste of judicial time. There must have been a considerable waste of money and judicial time as the result of the question under discussion not having been referred to a Full Bench when the correctness of the decision in Viswasundara Rao v. Somasundara Rao I.L.R.(1920) 43 Mad. 876 was first questioned.

29. For the reasons given I consider the decisions of the Courts below in this case were right. Consequently I would dismiss the appeal with costs and fix the advocates fee at Rs. 200.

Krishnaswami Aiyangar, J.

30. I concur in the conclusion reached by my Lord, which appears to my mind to interpret the decision of the Privy Council more in accordance with the spirit of the Hindu Law, than the opinions of some of the learned Judges who have had to consider the point in the, past. I am unable to find in the pronouncements of their Lordships a sufficient basis for assigning to the daughter's son a position of superiority over the agnatic kindred in the matter of consultation. Considerations of proximity of religious merit, or of the proprietary interest of the persons to be consulted, have no doubt been mentioned. But it will be found on scrutiny that such considerations were adverted to more by way of additional support for the recognized position of the agnatic group, than as furnishing in themselves independent criteria in making the choice.

Somayya, J.

31. I agree with the judgment which has just been pronounced by my Lord the Chief Justice but having regard to the importance of the question I wish to add a few words.

32. When a Hindu dies leaving a widow, divided agnates and daughter's sons, and his widow desires to make an adoption is it enough if she gets the consent of the divided agnates or is she bound to consult the daughter's sons as well?

33. In this case Subbamma the widow of Lakshmi Narayana the last male holder obtained the consent of her husband's divided brother's sons under Ex. G and adopted the first defendant who is the son of the second defendant. The second, third and fourth defendants are the husband's nephews who gave the consent under Ex. G. Subbamma did not consult at least one of her daughter's sons. The question is whether the adoption is valid.

34. The question has to be decided on a few texts of Hindu Law and on judicial decisions. Under the Hindu Law an adoption is always made to the husband. While the husband is alive he alone can adopt a son. He may associate his wife or one of his wives if he has more than one wife in the act of adoption; but he need not associate any one of them and can make the adoption by himself.

35. The wife's capacity to make an adoption is based on the fact that, adoption is an act which confers great spiritual benefit on her husband. But when can she make an adoption?

36. The text of Vasishta which is often quoted is-

Nor let a woman give or accept a son unless with the assent of her lord.

37. This text is accepted by the various commentators but has been interpreted by them in different ways. One extreme view which has prevailed in the Mithila School is that,

This consent of the husband must be given at the time of the adoption itself

so that, no adoption is possible after the husband's death. Thus no adoption by a widow is possible under the Mithila School of Law. The other extreme view is that which prevails in Bombay where it is held that adoption being an act conferring great spiritual benefit on the husband, his consent is presumed in the absence of a prohibition by him and a widow can therefore adopt except where the husband has prohibited it.

38. Between these two extreme views there are other views propounded by other schools of Hindu Law. The Dayabhaga school of law of Bengal holds that if the husband gives the authority to his wife to make an adoption to him, the authority may be exercised after his death. But if there is no such authority given by the husband during his lifetime, his widow cannot adopt. The Benares School of Law agrees with the Bengal view. Yet another view has been advanced and accepted in the Dravida country that even where the husband did not give the requisite authority, his widow can make an adoption with the consent of the husband's sapindas. The presumed incapacity of women to act independently is said to be the reason why she cannot make an adoption except with the husband's authority or his sapindas' consent.

39. The text which is generally relied on in this connection is that of Yagnavalkya, Chapter I, pl. 85:

j{ksr~ dU;ka firk foUuka ifr% iq=kLrq ok/kZdsA

vHkkos Kkr;Lrs'kka LokrU=;a u fpr~ fL=;k%AA

Let her father protect a maiden; her lord a married woman; sons in oldage; if none of these other gnaties. She is not fit for independence.

40. This supposed want of independence of a woman to act for herself is said to be cured by the consent of her husband's Kkr;% 'gnathayaha.'

41. This expression Kkr;% in ordinary parlance is certainly confined to agnatic sapindas. But it is said that it may also include cognates as well, that is, sapindas in general.

42. The Smrithis and the Commentaries do not contain any indication as to who is to be consulted by a widow in the absence of the authority of the husband. But in Strange's Hindu Law there are set out a number of cases decided by this Court in which the widow's power of making an adoption with the consent of sapindas was upheld.

43. The matter came up in the Ramnad case, The Collector of Madura v. Moottoo Ramalinga Sethupathy (1868) 12 M.I.A. 397 , before the Judicial Committee. After referring to Strange and Colebrooke their Lordships recognised the power of a Hindu widow to adopt a son with the husband's kinsmen's consent. In later cases the Judicial Committee expressed the same view in different language.

44. The question now before us has to be decided mainly on the judicial decisions. In a case of this kind we have primarily to see what the Judicial Committee has laid down in the several cases which went up for decision.

45. In the Ramnad case (1868) 12 M.I.A. 397 , there was a very distant agnate of the husband, and the mother of the husband. The widow adopted with the consent of both. The Judicial Committee held that the adoption was valid. The reference to the consent of the mother-in-law may be left out because it is on account of the presumed incapacity of a woman to act independently that the advice of the sapindas is enjoined on a widow. A person who is herself under an incapacity to act independently cannot supply the requisite advice or authority to another incapacitated person. It is conceded before us that female sapindas need not be consulted. In this very case the plaintiff, the daughter was not consulted and the adoption is not attacked on that ground.

46. Then comes the question as to who among the husband's sapindas are entitled to be consulted and whose authority it is that has to be obtained by a widow desirous of making an adoption.

47. Adoption introduces a stranger into the husband's family and prima facie it is the members of that family that have to decide on the advisability of introduction of a stranger into that family.

The assent of kinsmen seems to be required by reason of the presumed incapacity of women for independence, rather than the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by the adoption.

49. Then they say at page 443 that the Courts in India rightly found the members to be consulted in the Tevar's family and refer to the printed pedigree which is in fact a pedigree of his agnatic sapindas.

50. In Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi , the Judicial Committee laid down that there should be such proof of assent on the part of the sapindas as should be sufficient to support the inference that the adoption was made by the widow, not from capricious or corrupt motives, or in order to defeat the interest of this or that sapinda, but upon a fair consideration, by what may be called the family council of the expediency of substituting an heir by adoption to the deceased husband.

51. Taking these two cases, it is clear that the 'family' spoken of is the husband's family and it is his kinsmen, that is, the members of his family that are referred to in the above decisions.

52. So far, there is no indication that a daughter's son who is not a member of his family is a person who should be consulted by the widow. Then the next question is whether all the sapindas are to be consulted if not who among them are to be consulted and in what order. This question was answered in three decisions of the Judicial Committee, Jonnalagadda Venkamma v. Jonnalagadda Subramanyam (1906) 17 M.L.J. 114 : L.R. 34 IndAp 22 : I.L.R. 30 Mad. 50 , Veera Basavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 70 : L.R. 47 IndAp 99 : I.L.R. 43 Mad. 650 and Krishnayya v. Lakshmipathi (1920) 39 M.L.J. 70 : L.R. 47 IndAp 99 : I.L.R. 43 Mad. 650 . It is clear from these decisions (1) that it is enough if she obtains the consent of the nearest sapindas and that if she gets their consent, she need not go further and seek the consent of the remoter sapindas; (2) that she is bound to consult all the nearest sapindas and failure to consult even one of them will be fatal; (3) that even if it be certain that the nearest sapindas would refuse to give their assent, still she is bound to consult them. In dealing with this question, the Judicial Committee has used in Veera Basavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 70 : L.R. 47 IndAp 99 : I.L.R. 43 Mad. 650 , language which is relied on by Mr. V. Govindarajachari, in support of his case. In that case, the nearest sapinda was not consulted at all; and the widow obtained the consent of the remoter sapindas and made the adoption. The Judicial Committee held that the adoption was invalid. Several passages on pages 1010 and 1011 were relied on by Mr. V. Govindarajachari as supporting his contention. His contention is that in this case the Judicial Committee definitely laid down three tests : (1) who confers greater spiritual benefit on the deceased; (2) who is more closely related to the deceased according to the Mitakshara theory of propinquity; and (3) who is the person whose proprietary rights are affected by the adoption. Mr. V. Govindarajachari urges that the Judicial Committee approved the opinion of Golapchander Sirkar Sastri extracted on page 1011 of the report while referring to the analogy of the sapinda whose consent will. validate an alienation by the widow. He urges further that whatever test is applied, the daughter's son comes first and that the brother's sons of the deceased come after the daughter's son. For the first test, he refers to Dharma Sindhu and Nirnaya Sindhu which give preference to the daughter's son in the performance of funeral ceremonies. For the second, he relies, on the fact that the daughter's son is treated by the Mitakshara School of Law as being more closely related to the deceased than the brother's sons according to the doctrine of propinquity As for the third, he relies on the fact that the daughter's son succeeds in preference to a brother's son and where the two coexist it is the daughter's son whose proprietary rights are affected.

53. The second and third points go together. The preferential right of the daughter's son is based upon specific texts of Manu and Vishnu. The preference given to the daughter's son is to be traced to the practice of an appointed daughter in which case her son was considered to be in all respects equal to that of a son's son. Though this practice had become obsolete even by the time of Manu, the texts which give the preferential right to the daughter's son in general is traceable to the theory of the appointed daughter's son. When one daughter was not treated with a preferential right sons of all daughters came to be regarded alike, but the position that was given to the appointed daughter's son in the scheme of succession is maintained and the Smrithi writers embodied in their Smrithis, special texts giving the daughter's son in general a preferential right and making him inherit next after the widow and the daughter and before the father and the mother. (See Manu Chapter IX, pl. 127 to 136. Vishnu, Chapter XV, pl. 46.) As for the first ground urged it is not clear that in fact on the true principle of Hindu Law relating to the efficacy of the funeral oblations, the daughter's son is in any way superior to a brother's son. (See Sarvadhikari, Law of Inheritance, Second Edition, pages 662 and 663). He sums up the position thus on page 663 as to performance of parvana sradha:

In the case of maternal ancestors, the daughter's son should also celebrate these rites as an act of moral obligation although not legally bound to do so.

54. He also points out that it is legally obligatory on a person to perform these rites as regards his paternal ancestors. Thus a brother's son is legally bound to offer pindas at parvana sradha to the deceased's father and grandfather to whom the deceased also was offering pindas. Bat a daughter's son is not legally bound to offer any pindas to his maternal ancestors. Further, what a daughter's son offers are termed secondary pindas, whereas the pindas offered by agnates are called primary pindas and the latter are supposed to be superior to the former.

55. After all what has to be decided is whether an adoption was proper in the circumstances of any given case. As pointed out by the Judicial Committee, she is not to make an adoption with a view to spite this or that sapinda but on the expediency of substituting an heir by adoption to the deceased husband. In this task the Courts do not take upon themselves the duty of finding out whether in any particular case it is expedient and proper to introduce an heir by adoption to the husband. This duty is cast upon the widow's advisers and natural protectors. As an adoption introduces a new member into the husband's family, it is the members of that family that have to be approached by the widow to get the necessary consent. The right is the peculiar right of the members of that family. It is their right to judge whether a new member by adoption should be introduced into this family. As the. Judicial Committee said in The Collector of Madura v. Moottoo Ramalinga Sethupathy (1888) 12 M.I.A. 397 , the Courts in India rightly found the members to be consulted in the Tevar family, that is, his own agnatic family. In the decision in Veera Basavaraju v. Balasuryaprasada Rao (1918) 36 M.L.J. 40 : L.R. 45 IndAp 265 : I.L.R. 41 Mad. 998 , the observations at p. 1009 are decidedly in favour of the view that the father and the brothers at any rate are entitled to be consulted in every case. As expressly laid down there, the father-in-law when alive is entitled to be consulted as the head of the family and as the venerable protector and in his absence, the brothers are said to take his place and they are entitled to be consulted.

56. Stopping here, if the view that is propounded by Mr. Govindarajachari for the appellant is correct, then the brothers at any rate are postponed to a daughter's son in the matter of consultation. Mr. Govindarajachari states that the father stands on a peculiar footing but he would ascribe it to a special text of Vidyaranya Swami extracted in the judgment of the Judicial Committee in the Ramnad case, The Collector of Madura v. Moottoo Ramalinga Sethupathy (1868) 12 M.I.A. 397 . Mr. Govindarajachari says that it is on account of the special text that the father of the deceased or the father-in-law of the adopting widow is given that peculiar position and he argues that even the brothers are not entitled to be consulted in preference to a daughter's son. But the passage in Veerabasavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 40 : L.R. 45 IndAp 265, leaves no room for doubt that in the absence of the father, the brother is placed in the same position which the father occupied. The Judicial Committee says that the brothers are as much interested in the protection of the inheritance and in the spiritual welfare of the deceased as the father-in-law was and the two are placed in the same position so far as this matter is concerned. If therefore we read the passage at p. 1009 of the above report, it is clear that the Judicial Committee treats the father and the brothers as standing on the same footing. When the father is alive, he is to be consulted and when he is dead the brothers are entitled to be consulted. Their consent is an essential requisite and it is enough if their consent is got. The passages occurring in pages 1010 and 1011 are therefore to be understood as dealing with practical rules to be applied as to who, among the various agnatic sapindas, are to be consulted and in what order. So understood the passages at pages 1010 and 1011 become easy of application among the agnatic sapindas. Those who are nearer in degree, those who offer greater spiritual benefit, those who would succeed in preference to others, are the persons entitled to be consulted first. Indeed, if they are not consulted, the mere fact that she gets the consent of a larger number of remoter sapindas does not cure the def ct. Further Mr. Ameer Ali who delivered the judgment of the Board in Veera Basavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 40 : L.R. 45 IndAp 265 : I.L.R. 41 Mad. 998 , refers at page 1004 to the decision in the Ramnad case as having laid down that a widow may adopt with the consent of male agnates. Whatever doubts there might have been if the judgment in Veera Basavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 40 : L.R. 45 IndAp 265 : I.L.R. 41 Mad. 998 stood alone, the later pronouncement of the Judicial Committee in Krishnayya v. Lakshmipathy (1920) 39 M.L.J. 70 : L.R. 47 IndAp 99 : I.L.R. 43 Mad. 650 , leaves no room for doubt that throughout, it is the agnatic sapindas that are referred to in all these decisions. In Krishnayya v. Lakshmipathy (1920) 39 M.L.J. 70 : L.R. 47 IndAp 99 : I.L.R. 43 Mad. 650 , the Judicial Committee referred to the Ramnad case, The Collector of Madura v. Moottoo Ramalinga Sethupathy (1868) 12 M.I.A. 397, and to the case of Veer a Basavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 40 : L.R. 45 IndAp 265 : I.L.R. 41 Mad. 998 , and then said as follows:

The consent required is that of a substantial majority of those agnates nearest in relationship who are capable of forming an intelligent and honest judgment on the matter. It must however be added that save in exceptional cases such as those mentioned above (where the nearer agnate is a minor or a lunatic or actuated by corrupt and malicious motives) the consent of the nearer sapindas must be asked and if it is not asked it is no excuse to say that they would certainly have refused.

57. Coming after the decision Veera Basavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 40 : L.R. 45 IndAp 265 : I.L.R. 41 Mad. 998 and that within two years of that decision, the above passage leaves no room for doubt that it is the agnatic sapindas who are nearest in degree and who are capable of forming an honest opinion on the question of the expediency of introducing an adopted son that are entitled to be consulted.

58. We are now not concerned with the question whether in the absence of agnates the widow might adopt with the consent of cognates. If both agnates and cognates co-exist the agnates must certainly be consulted in preference to cognates. In Kesar Singh v. The Secretary of State for India : AIR1926Mad881 , Mr. Spencer lays down the rule that when both cognates and agnates exist, the agnates are entitled to preference in the matter of consultation. It is not necessary to say much about the observations of the Judicial Committee in the recent Uthumalai case, Balasubramanya Pandya Thalaivar v. Subbayya Thevar : AIR1939Mad168 . As pointed out in the judgment of my Lord just delivered the question did not arise for decision. The point had been mooted in the trial Court but had been given up in the trial Court. This was not urged in the High Court or in the printed case before the Judicial Committee. The Judicial Committee was not prepared under the circumstances to allow the appellant to raise that question at. all. Having said so there is the observation relied upon by Mr. Govindarajachari. This cannot be taken to be a definite pronouncement on the question. At any rate it does, not deal with the question which we have now to decide.

59. I therefore concur in the opinion pronounced by my Lord the learned Chief Justice.